STAY OF EXECUTIONS UNDER CAMEROON PENAL LAWS

BusinessLegal

  • Author Ayuk Nkwa Pascal
  • Published October 14, 2021
  • Word count 2,548

At the end of a trial, a convict can be given an imprisonment sentence or a pecuniary sentence. An imprisonment sentence would mean loss of liberty and the maximum is life imprisonment. The parties equally have the right to apply for a stay of execution of the court order. A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word “execution” does not necessarily mean the death penalty although it can; it refers to the imposition of whatever judgment is being stayed. It is similar to an injunction. A stay can be granted automatically by operation of law or conventionally, when the parties in a civil or criminal case agree that no execution shall occur for a certain period. If a party appeals a decision, any judgment issued by the original court may be stayed until the appeal is resolved.

GROUNDS TO STAY EXECUTION

The primary role of the courts is to do justice to both the contending parties and the society at large. After all the evidence is taken and addresses done, it is critically important that the judgment should inspire societal confidence. The best test of this is where both litigants and the ordinary bystander go away feeling that justice has been done and not otherwise. The quality of the judgment is naturally the exclusive basis for determining whether justice has been rendered the parties in a specific case or not. This being the case, the judge both trial and appellate must be scrupulous and conscientious in writing his judgment . Nothing should be left to chance. By section 37(2) of the Constitution 1996, the judge is obliged to be guided only by his conscience in deciding a matter before him. In some cases the judge may have to stay the execution of the judgment. This may be as a result of certain considerations or reasons. The reasons for stay of execution are examined below.

 False identity of the convict

The court may stay execution where the person convicted is the wrong person or is not the person who actually committed the crime. According to Section 10 of the Cameroon Criminal Procedure Code , where in the course of the investigation or trial, it is established that a person has usurped a civil stains or has been convicted under a false identity, the proceedings shall be stayed until such identity is rectified, at the instance of the Legal Department which shall, to this effect, and as the case may be, refer the issue to the competent judicial identity service or to the court whose decision contains the error on the identity of the convict. In the case of Lorence Acha Mbah and Oben Luis Oben Vs. The People of Cameroon , the court held that the Legal Department cannot refuse to execute a court order merely because they are aggrieved by it and so the order can only be suspended where there is a false identity.

 In case of pecuniary sentence

In the case of Nduh John and Mudang Johnson Vs. The People , the court held that there are two reliefs available to a convict against whom an imprisonment warrant has been issued. First he may forestall or terminate the execution of the warrant by payment of the pecuniary sentence. Secondly if the warrant has been executed and he is incarcerated, he may suspend execution of the warrant by furnishing a surety guaranteeing payment of the pecuniary sentence within 2 months from the day following the signing of the recognizance by the surety. Section 561 of the Criminal Procedure Code is to the effect that the President of the Court of First Instance of the place of execution of the warrant shall rule in chambers on the application, after hearing the convict and the proposed surety. Such a ruling shall not be subject to appeal. Where the application is granted, the President shall explain to the surety the consequences of his recognizance and shall request him to sign a document by which he shall undertake to pay the debt or failing that, to be subjected to imprisonment in default in place of the convict on expiry of the time limit provided for in section 560 of the same code. After the surety has read and signed the recognizance, the President shall cause the debtor to be released forthwith. Notice of the ruling shall be served forthwith on the Superintendent of Prison and a copy each shall be forwarded to the President and the Legal Department of the court that issued the imprisonment warrant.

 Where a civil claim is attached to a criminal action

According to Section 59(1) of the Cameroon Criminal Procedure Code, the commission of any offence may lead to the institution of criminal proceedings and as the case may be, to a civil action. The institution of criminal proceedings aims at procuring a sentence or a preventive measure against an offender as provided by law and civil action is intended to provide compensation for damages resulting from an offence . In Cameroon, Criminal proceedings shall be instituted and prosecuted by the Legal Department. They may also be instituted by any government department or by the injured person under the conditions laid down by law . And so according to Section 61 of the Criminal Procedure Code, a civil claim may be made alongside a criminal action before the same court so long as they arise from the same offence. It may also be brought separately from a criminal action. In the case of Nkweta Paul & 2 Ors Vs. The People & 2 Ors , the court held that a civil claim may be made alongside a criminal action before the same court so long as they arise from the same offence. And that anyone who alleges that he suffered injury as a result of the commission of an offence may make an oral or written application for damages in court. The application for damages by a civil party shall be made before the end of the proceedings otherwise it shall be inadmissible.

And in such a case, the court seized of the civil matter shall stay proceedings until a final decision on the criminal action has been pronounced. In the case of withdrawal of a civil claim the situation is different. The withdrawal of a civil claim may not stay criminal proceedings except otherwise provided by law .

 In case of an application to set aside a judgment

Once the court has delivered its judgment, it can be set aside. Section 427 of the Criminal Procedure code is to the effect that with the exception of the Legal Department, any party to the case may file an application for the setting aside of a judgment in default. However, if a civil party has been duly served but does not appear in court or does not submit or is not represented at the trial and does not sufficiently excuse his absence, he shall be considered as having abandoned his civil action. In such a case, he shall not be allowed to apply for the setting aside of the judgment delivered. If prosecution was commenced by the defaulting civil party, the court shall limit itself to the criminal proceedings after the submissions of the Legal Department.

In case of any application to set aside a judgment in default, the execution to the judgment shall stayed. However, the warrant issued by the court or the award granted in accordance with the provisions of section 392 shall remain enforceable . The application to set aside a judgment in default may be limited to the criminal or civil aspect of the judgment .

In case of an application to set aside a judgment in default, the court that delivered the judgment shall have jurisdiction to try the matter de novo . (2) If the convict has been arrested by virtue of a warrant of arrest issued by the trial court that delivered the judgment in default, the matter shall be listed for the next hearing or at the latest within seven (7) days of the application to set aside the judgment, failing which he shall be released on bail, if he fulfils one of the conditions provided for in section 246 (g) .

The time-limit for applying to set aside a judgment shall be ten (10) days from the day following the date of personal service of the judgment on a convict who resides in Cameroon . It shall be three (3) months as from the day following the date of personal service of the judgment on a convict who resides abroad . If service of the judgment was made in accordance with section 57, the time-limit for the application shall be ten (10) days with effect from the day following service . Where within the prescribed time-limit there is an application to set aside a judgment in default and appeal against the same judgment, the application to set aside the judgment shall be dealt with before referring the matter to the Court of Appeal . If, however, the Court of Appeal has begun hearing the appeal before the ruling is made on the application to set aside the judgment, any interested party may draw the court's attention to the existence of such application. In such a case, the court shall stay the hearing of the appeal until the application in dealt with .

 In case of an appeal

Every judgment including that delivered by a Military Court, shall be subject to appeal, unless otherwise provided by law and according to Section 439 of the Criminal Procedure Code, those who have the right to appeal in a case include a) the convict; b) the person vicariously liable; c) the insurer, if he has been a party to the proceedings; d) the civil party; e) the State Counsel; f) the Procureur General at the Court of Appeal; g) the government department which commenced the prosecution as provided for in section 60 of this code.

Section 453 of the Criminal Procedure Code is to the effect that all appeal shall stay the enforcement of the judgment. However, all custody warrants shall remain enforceable and the provisional awards made to a civil party in accordance with the provisions of Section 392 (1) shall be paid to him.

When it comes to appeal, there is an exception. That is, where an appeal would not have the effect to stay the execution of the judgment. Section 503(1) of the Criminal Procedure Code provides that “An appeal to the Supreme Court shall not stay the execution of a judgment; in particular: (a) any warrant either issued or upheld by the Court of Appeal shall continue to produce its effects; (b) measures of judicial supervision ordered or confirmed by the Court of Appeal shall continue to produce their effects; (c) where there is an acquittal or suspended sentence or a fine by the Court of Appeal or where the term of imprisonment is less or equal to the time spent in detention, the appellant in detention shall be immediately released, subject to the provisions of section 393.” Subsection (2) goes further to state that, however; the accused may apply to the Supreme Court for suspension of the measures of judicial supervision, or the cancellation of the warrant.

Section 505(1) of the Criminal Procedure Code is to the effect that the laws in force relating to stay of execution of civil awards shall be applicable before the Supreme Court and subsection further provides that “The President of the Supreme Court or the President of the section that he delegates for this purpose, shall decide alone on the application for stay of execution of civil awards referred to in sub-section (1) after receiving the submissions of the Procureur General.”

 In case of an application to review a case

According to Section 535(1) of the Criminal Procedure Code, a review of criminal proceedings may be applied for in favour of any person convicted of a felony or misdemeanour in the following circumstances:

 When, after a conviction for murder fresh evidence is adduced to prove that the alleged victim is still alive;

 When it is found, after conviction, that the person convicted was innocent even if he was responsible for the error that misled the court;

 When a person other than the person convicted admits before credible witnesses that he committed the felony or misdemeanour and confirms such admission before a judicial police officer;

 When, after a conviction, new documents or facts have come to light and are of such a nature as to establish the innocence of the person convicted.

Section 535(2) of the same code is to the effect that an application for review shall be admissible only when the judgment has become final.

Section 536 of the same code provides that “The enactment of a new law shall not constitute a ground for review.” The right to apply for review shall be exercised by: the Minister in charge of Justice ; the convict or, in the event of his disability, his legal representative ; any person interested in doing so, in the event of the death of the convict or his having been judicially declared absent . Section 537(2) of the Criminal Procedure Code provides that “The application for review shall not be subject to a time-limit.”

The application for review together with a copy of the judgment appealed against and any other supporting document shall be submitted to the Procureur General of the Supreme Court, who shall prepare the case file and submit it to the court .

According to Section 541(2) of the Criminal Procedure Code, when the court finds that the application is admissible but is not ready hearing, it shall, by an interlocutory ruling, order all necessary measures of inquiry. In such a case, if the sentence has not been executed, its enforcement shall be stayed or suspended.

CONCLUSION

A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. A stay can be granted automatically by operation of law or conventionally, when the parties in a civil or criminal case agree that no execution shall occur for a certain period. There are challenges faced in Cameroon when it comes to the dispensation of criminal justice. The challenges are both procedural and substantive. The procedural challenges have to do with the challenges faced by litigants during preliminary investigations; that is police investigations and the preliminary investigations by the Examining Magistrate. The substantive challenges have to do with the challenges faced by the litigants in the enjoyment of their rights during and after the trial. The procedural challenges include the lack of practice directions, illegal detentions and substantive challenges include the lack of judicial independence, politicization of the criminal justice system and the undue delays of certain criminal proceedings in court.

BIBLIOGRAPHY

BOOKS

Bryan A. Garner, Black’s Law dictionary, USA, Thomson Reuters, 9thedition 2009.

Merriam-Webster dictionary

Metiege Divine Njikang, Access to Justice in Cameroon, Nanje School of Creative Thinking, August 25, 2009.

ARTICLES

Atoh Walter M. Tchemi, “Critique on Sections of the Cameroon Criminal Procedure Code, Cameroon, International Journal of Scientific and Research Publications, Volume 6, Issue 9, (September 2016),

Atoh Walter, Fair Trial a Nightmare in the Judicial System in Cameroon. Part Two. The Time Law Firm, Published July 13th 2015.

Barrister Tanyi Joseph Mbi, Law without Boundaries: Compensation for Illegal Detention, Center for Human Rights Education, Training and Research( CHETAR) (Online).Posted by Effa Tataw ,5th March 2009.

Gwain Colbert, “Justice in Cameroon: A Commodity for the Highest Bidder” Cameroon, Eden Newspaper.

I am called Ayuk Nkwa Pascal; former President of the Law Society- University of Buea and a researcher interested in legal studies and politics. I am a holder of a Masters Degree in International Law from the University of Buea. I am currently undertaking a Masters research in Public Administration in the same institution.

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